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Case 2:04-cv-00047-MMH-SPC Document 88 Filed 03/02/2007 Page 1 of 15
WHITNEY INFORMATION
NETWORK, INC., a Colorado corporation,
Plaintiff,
v.
Defendants.
____________________________________/
through its undersigned counsel, files this, its Response to Defendants’ Amended Motion
False Description and False Representation under 15 U.S.C. § 1125(a); III) Common
2. On June 28, 2004, Defendants filed their first Motions to Dismiss for lack
Dockets.Justia.com
Case 2:04-cv-00047-MMH-SPC Document 88 Filed 03/02/2007 Page 2 of 15
Plaintiff failed to state a cause of action, which was granted by this Court on September
third Motion to Dismiss on October 21, 2005, again alleging lack of personal jurisdiction.
5. This Court granted the Motion and dismissed the above styled action.
Plaintiff appealed the dismissal with the Eleventh Circuit Court of Appeals.
6. By Order entered November 13, 2006, this Court, pursuant to the Mandate
of the Eleventh Circuit Court of Appeals, issued August 30, 2006, vacated its prior order
dismissing Plaintiff’s Amended Complaint [Docket # 69] and reopened the case for
further proceedings. This Order further directed the Clerk to reopen Defendant’s Motion
[Docket #58] so that this Court could consider the issue of whether the exercise of
personal jurisdiction over Defendants would violate due process, which was not
addressed by the Eleventh Circuit on appeal. Finally, this Order established the
following pretrial deadlines: Joint Final Pretrial Statement due March 16, 2007; Final
Pretrial Conference to be held March 26, 2007 at 9:00 a.m. before a judge who was not
yet assigned to the case; and trial term to commence April 2, 2007.
7. On February 23, 3007, this Court denied the Motion to Dismiss for Lack
Whitelock, Esq., requesting the non-privileged litigation file his firm maintained in a
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former lawsuit against Defendants. Included within the litigation file was Defendant,
9. On February 23, 2007, Defendants filed a Motion for Protective Order and
to Quash Subpoena.
10. On February 23, 2007, this Court entered an Order directing Defendants to
11. On February 28, 2007, Defendants filed their Amended Motion for
Protective Order and to Quash Subpoena. In their Amended Motion, Defendants contend
that they did not receive the Subpoena. Further, Defendants argue that, although there is
Magedson for an improper purpose, it should not be produced by the third party.
assist Plaintiff in assessing the demeanor and mannerisms of Magedson, and would
further help determine whether or not Mr. Magedson would make a good witness.
13. As to the issue of service of the Subpoena, it is the ordinary practice of the
undersigned law firm to always mail a Subpoena to opposing counsel, pursuant to Rule
45, Fed.R.Civ.P, contemporaneously with the service of the Subpoena. Due to the size of
the undersigned law firm, twenty seven (27) attorneys and the massive amount of mail
that is sent each day, the assistant responsible for mailing the Subpoena to opposing
counsel cannot aver to the fact that it was mailed, however, it is her ordinary practice to
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the fault lies with undersigned law firm’s failure to mail the Subpoena to Defendants, and
not Defendants’ misfiling, problems with U.S. Mail, etc., then the failure to mail the
impossible for Defendants to make a showing that the Subpoena was not mailed, other
than Defendants’ representation that they did not receive the Subpoena, there is no
14. Nonetheless, Defendants were given notice of the Subpoena and have had
sufficient time to assert their objections. Accordingly, Defendants have not been
prejudiced by the purported failure to serve them, and as such, should not factor into the
determination with regards to the production of the information. Should this Court
determine that the failure to provide the Subpoena to Defendants result in the granting of
Defendants’ Motion for Protective Order and to Quash Subpoena, then Plaintiff will
serve an identical Subpoena, and everyone will end up in the same place. Such a result
would undoubtedly not promote judicial economy. Further, as this action is set for trial,
pending a Motion for Continuance, commencing on April 2, 2007, time is of the essence
concern centers around the videotaped deposition of Magedson. Defendants contend that
should Plaintiff receive the videotape, somehow there is a possibility of it being utilized
to harass Magedson, be edited, altered and manipulated to create slanted and false
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whatsoever, that Plaintiff would commit these actions, only pointing to other incidents,
unrelated to any videotaped occurrences, where other persons unrelated to Plaintiff took
16. It should be noted that Attorney Whitelock has not objected to producing
the documentation.
17. As such, Defendants’ Motion for Protective Order should be denied, and
18. It should be noted that the footnote contained on page 3, denoting that
counsel for Plaintiff Robert Buschel “refused to return the telephone call of the
regards to the resolution of this motion. This is evidenced by the fact that Defendants
reference conversations with Mr. Buschel at page 7 of their Amended Motion, wherein
“Plaintiffs also refused to stipulate to a protective order limiting the use of the video
deposition…” Motion at 7. Further, it is undisputed that Mr. Buschel did in fact discuss
MEMORANDUM OF LAW
A. Initial Facts
and services in the areas of real estate investing, business development, financial
investment and asset protection real estate to students world-wide. Plaintiff conducts
approximately 150 real estate free preview training programs per month with
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approximately 24,000 new students registered each month. Furthermore, Plaintiff spends
millions of dollars each year on infomercials and other advertising to promote its
products and services. Plaintiff’s training programs are designed to present their students
with the maximum amount of education by offering cutting-edge real estate and investing
so that consumers and potential consumers searching the Internet for Plaintiff’s products
about “companies or individuals who rip off consumers.” Despite Plaintiff’s excellent
reputation for services in the community and amongst its customers, Plaintiff became a
illicit extortion scheme involved the Defendants encouraging “clients” to complain about
submit complaints about any company that has allegedly “ripped” the consumer off.
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Once Defendants receive the complaints from the consumers they review them and
Defendants’ selection process, they include a large number of negative comments but
often tailor and re-write the complaints themselves, adding words such as “ripoff,”
“dishonest,” and “scam,” notwithstanding the nature of the complaint, after which
Defendants would have the “client” anonymously post the complaint on Defendants’
website. Furthermore, and upon information and belief, Defendants would also create
fictional complaints themselves, which were then attributed to people with false names or
“anonymous” titles from fictional locations around the United States, despite knowing
that such complaints were fabricated by Defendants themselves, and were false and
complaints gives the appearance of legitimacy to the complaints, and the multiple
complaints are absorbed by search engines on the Internet, resulting in higher placement
customers, and ultimately, Plaintiff. This was done in an effort to damage the targeted
refuse to post the rebuttals, or step up the campaign of targeting the company with
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company persists in its effort to rebut Defendants’ false and defamatory postings, the
Defendants then launch an illicit extortion scheme whereby the targeted company is
commenced this action before Defendants had an opportunity to seek such payment from
Plaintiff, and in any event, Plaintiff would have refused to pay any extortion fees for the
Subsequent to the instant action being filed, Defendants filed suit against the
undersigned law firm and Chris Sharp, Esq., an attorney working on this case, and his
wife, listed as Jane Doe Sharp, in Arizona, titled Magedson v. Christopher C. Sharp and
Jane Doe Sharp; and Rothstein Rosenfedlt [sic] Adler, Case No.: CV 1007-001968,
B. Standard
[A]nd for good cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, . . . may make any order
which justice requires to protect a party of person from annoyance,
embarrassment, oppression, or undue burden or expense, . . . that the . . .
disclosure or discovery not be had.
Rule 26(c)(1), Fed.R.Civ.P. Defendants must show that Magedson would be annoyed,
C. Failure to Serve
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contemporaneously with the service of the Subpoena. Due to the size of the undersigned
law firm, twenty seven (27) attorneys and the massive amount of mail that is sent each
day, the assistant responsible for mailing the Subpoena to opposing counsel cannot aver
to the fact that it was mailed, however, it is her ordinary practice to mail a Subpoena to
opposing counsel contemporaneously with serving the Subpoena. If the fault lies with
undersigned law firm’s failure to serve the Subpoena to Defendants, and not Defendants’
misfiling, problems with U.S. Mail, etc., then the failure to mail the Subpoena to
Nonetheless, Defendants were given notice of the Subpoena and have had
sufficient time to assert their objections as well as two opportunities to file Motions for
Protective Order. Accordingly, Defendants have not been prejudiced by the purported
failure to serve them, and as such, should not factor into the determination with regards to
the production of the information. Should this Court determine that the failure to provide
the Subpoena to Defendants result in the granting of Defendants’ Motion for Protective
Order and to Quash Subpoena, then Plaintiff will serve an identical Subpoena, and
everyone will end up in the same place. Such a result would undoubtedly fail to promote
judicial economy. Further, as this action is set for trial, pending a Motion for
Continuance, commencing on April 2, 2007, time is of the essence with regards to issues
pertaining to discovery. The third party did not object to producing the documents
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provided to Plaintiff.
wherein Defendants post complaints critical of certain companies, and therefore, certain
companies have become resentful of Defendants and might retaliate in some manner.1
Defendants concede that: “Defendants do not claim that Russ Whitney or his business
(Plaintiffs) would necessarily do that.” Motion for Protective Order at 6. Defendants also
do not provide one scintilla of evidence to show that Plaintiff would, or has even threatened,
Instead, Defendants provide one purported threat against Magedson that is totally
unrelated to the videotaped deposition, and unrelated to Plaintiff. Further, the purported
threatening letter is not signed, not authenticated and constitutes impermissible hearsay.
Defendants also reference an “angry” business owner that has created a website to
a company utilizing a website for the express purpose of providing critical information
about them, something Defendants’ website does, and one of the reasons why the instant
nor does it operate a website that criticizes Defendants. Again, Defendants’ argument has
Defendants next seem to utilize their prognostic abilities by arguing that if the
deposition was allowed to circulate freely, it would “certainly be misused by hostile people
in hostile public forums…The video transcript would be edited, altered, and manipulated to
1
It should be noted that Defendants fail to state that the website postings include comment, editing and/or
manufactured complaints directly from Defendants about Plaintiff. Further, Defendants fail to state that the
only way a company that has complaints issued against it can rebut the complaints is to provide Defendants
with tens of thousands of dollars just to provide its “rebuttal.”
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create slanted and false impressions, and it would be posted on internet blogs and websites.
embarrass, and oppress.” Motion at 6. This gross speculation is not based on fact, and it is
unclear how Magedson could possibly aver, under oath, that this would undoubtedly occur.
Nonetheless, there does not exist any evidence that Plaintiff will widely disseminate the
videotaped deposition.
In fact, Defendants only “evidence” is one purported threatening letter, one website
“reasonable” restrictions consisted of, among other things, “prohibiting Plaintiffs from
however, might utilize the videotaped deposition for purposes of responding to subpoenas
with regards to other lawsuits, similar to Mr. Whitelock’s issue. Plaintiff might wish to
provide the videotaped deposition to experts, witnesses and other interested parties for the
purpose of assisting it in litigation. Undoubtedly, Plaintiff will wish to utilize the videotaped
deposition in the Arizona action filed by Magedson against the undersigned law firm. These
are wholly appropriate uses for the videotaped deposition that might fall outside the
“reasonable” restrictions.
First Amendment right to free speech. As Magedson has purposefully interjected himself
into the public specter, he has clearly placed himself voluntarily into a position where his
actions and statements will be scrutinized. This is especially true due to the fact that
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Defendants maintain a website that criticizes other companies, and only allows companies to
somehow distort the videotaped deposition, then Defendants could take legal action to
defend them. Clearly, as evidenced by the already pending spurious action filed by
Defendants against Plaintiff’s attorneys and an attorney’s wife, Defendants are aware of the
In Condit v. Dunne, 225 F.R.D. 113 (S.D. N.Y. 2004), the District Court was
confronted with a similar issue. In Condit, the plaintiff’s attorney was quoted in the New
York Post as stating that the defendant “was in ‘deep, deep, trouble’ as a result of his
deposition testimony and that the ‘transcript will be interesting, but the video will be even
more interesting.’ Further, in an email correspondence with defense counsel, Mr. Wood
stated that ‘when the public learns of Mr. Dunne's testimony, whatever reputation he
enjoyed will be lost forever in my opinion.’” Condut, 225 F.R.D. at 114. The defendant
moved for protective order to bar the public dissemination of the videotaped deposition of
Though the case law is muddled, the Court is persuaded that defendant
fails to allege sufficiently good cause for sealing the videotape transcript
of his deposition testimony, with specificity or otherwise. The Court
finds no case law that would support sealing the video under the facts of
this case; therefore, the Court finds that movant has failed to satisfy either
standard.
Id. at 116. Therefore, even though the Court heard threats from plaintiff’s counsel that
the videotaped deposition would be disseminated, the Court did not find good cause to
seal the videotaped transcript. In the instant matter, there do not exist any evidence,
whatsoever, that Plaintiff plans to disseminate the videotape to the public, nor utilize the
videotape in any improper manner. Thus, Defendants clearly cannot establish good cause
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to deny Defendants the ability to observe the videotape. Id.; see also Flaherty v.
Seroussi, 209 F.R.D. 295 (N.D.N.Y.2001) (Court found that the movant failed to
establish good cause for protective order even though plaintiff’s counsel stated: “relishes
the opportunity to question [the Mayor and is] going to concentrate [his] efforts on
2004 WL 2124787 (N.D. Ill. 2004) and Paisley Park Enterprises, Inc. v. Uptown
Productions, 54 F.Supp.2d 347, 349 (S.D. N.Y. 1999), do not support their position.
Those cases involved actual findings that the parties were going to utilize the deposition
transcripts for improper purposes. However, in the instant action, no finding has been, or
can be made.
As to the Circuit Court’s Protective Order, there exists only one limitation. The
court Ordered on October 12, 2005 that “Plaintiffs may take a video deposition, but
cannot publish video on World Wide Web or otherwise…” See Order, Exhibit “B” to
Defendants’ Motion. Defendants represent that the Circuit Court “prohibited the
undermine what the Circuit Court sought to achieve when it precluded any dissemination
statements are a complete misrepresentation of the Circuit Court’s Order. Nowhere in the
Order does the Circuit Court Judge state that the videotaped deposition could not be
utilized outside of the litigation, he only Ordered that plaintiffs could not publish video
on the World Wide Web or otherwise. Nothing in the Order prohibits the production of
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CONCLUSION
It is unclear as to why Defendants did not receive the Subpoena at the same time
that it was served on the third party. Undersigned is sure that it was mailed
contemporaneously, but cannot aver to that fact simply due to the volume of mail
generated by the undersigned law firm’s office. If the Subpoena was not mailed to
Defendants had sufficient time to voice their objections and prepare thorough briefs
regarding same.
deposition should not be produced. Further, Defendants do not oppose the production of
any other documents, as no mention is made in the Amended Motion to any other
documents other than the videotape. Defendants have not shown that Plaintiff will do
anything improper with the videotape. Even if Defendants did make a showing, the
threat would have to rise to a level of actual harm to Defendants. This also was not
DENIED.
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Respectfully submitted,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished, by mail, this 2nd day of March, 2007, to: Maria Crimi Speth, Esq., Jaburg &
Wilk, P.C., Counsel for Defendants, 3200 North Central Avenue, Suite 2000, Phoenix,
AZ 85012.
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